Dishonest? Struck Off?

May 1, 2019

Over thirty years on from R v Ghosh (1982), the Supreme Court, in the case
of Ivey v Genting (2017) has overturned the two-limb test for assessing
dishonesty in criminal proceedings, creating a powerful impact on the criminal
law.

What Is the New Position?

The
position, as a result, is that the Court must form a view of what the
defendant’s belief was of the relevant facts (but it is no longer necessary to
consider whether the person concerned believed that what he did was dishonest
at the time).

Where
dishonesty is an issue in civil cases, in this case before a Regulator, the
same legal test applies as it would in the Criminal Courts.

What Does This Change Mean?

This
means that where dishonesty is in question, the fact-finding Tribunal must first
ascertain (subjectively) the actual state of the individual’s knowledge or
belief as to the facts. The
reasonableness or otherwise of his belief is a matter of evidence (often in
practice determinative) going to whether he held that belief, but it is not an
additional requirement that his belief must be reasonable, the question is
whether it is genuinely held.

The
question of whether his conduct was honest or dishonest is to be determined by
the fact finder (objectively) against the standard of ordinary decent people.

Therefore,
the Tribunal has to analyse whether the Respondent had a dishonest state of
mind as Ivey now requires it to do.

The
Tribunal will have to carry out a more straightforward, one stage test, looking
at all the facts and circumstances, including the Registrant’s state of mind
and then consider whether the Regulator (Prosecution) has proved
dishonesty. The point of Ivey was that
he thought that what he was doing was not dishonest. He thought he had a legitimate edge over the
casino through legitimate means. The
Supreme Court said that the ordinary person would consider this to be a
dishonest edge as opposed to a legitimate one and therefore dishonest. The subjective thing was the facts – Ivey
knew what those were and drew the wrong conclusion.

However,
being found dishonest by your regulatory Professional Conduct/Fitness to
Practice Committee does not necessarily mean that you will be “struck off” the
register.

Case Examples

In
the matter of R (on the application of Solicitors Regulation Authority)
v Imran (2015), the
Solicitors Disciplinary Tribunal (SDT) noted that the Appellant’s conduct had
been spontaneous amounting only to “a single episode of very brief
duration”. This, linked to his
immediate, frank and open discussions with the police and the SDT and, in this
case, his immaturity, found these to be exceptional circumstances and therefore
he was not removed from the register.
Dishonesty appears to lie on a spectrum and each case will depend on its
own facts. The way injustice will not
occur and minor dishonesty not carry a penalty which would not be exacted in
criminal proceedings is something that could be argued on behalf of any particular
Registrant in the appropriate circumstances.

This
has to be right in the civil arena because it is so in the criminal arena.

However,
a lack of integrity appears to be a broader concept than honesty and expresses
the higher standard society and professions expect from professionals.

Wingate v SRA
(2018)

The case
of Wingate v SRA (2018) shows a difference of approach is resolved firmly and fairly
in favour of there being a clear distinction between honesty and integrity.

Neither
Courts nor professional Tribunals must set unrealistically high standards. The duty of integrity does not require
professional people to be paragons of virtue.

The
General Osteopathic Council (GOsC) relates integrity to the professional’s
avoidance of being placed under the inappropriate influence of others or acting
in such a way as to gain financially.

Is Being Struck off
Inevitable?

Erasure
is not necessarily inevitable and necessary in every case where dishonesty
conduct by a professional practitioner has been substantiated. There are cases where the Panel or indeed a
Court of Appeal has concluded, in light of the particular elements, that a
lesser sanction may suffice and it is the appropriate sanction bearing in mind
the important balance of the interests of the profession and the interests of
the individual.

Although it may be highly likely that dishonest conduct would lead to
erasure/strike off, the Court will consider the individual’s circumstances of
each case and balance the Registrant’s interests with a need to protect the
public interest.

Contact Tuckers Specialist Criminal Defence Solicitors

At Tuckers, our highly respected solicitors have vast
experience defending professionals against allegations of dishonesty or criminal
behaviour that call into question their ability to meet expected
standards. We take a thorough, technical and robust approach, aimed at getting
the best possible result for our accountancy clients. Whether you’re an
individual or a firm, if you’re looking for expert legal assistance concerning
a regulatory or disciplinary matter, please get in touch at the earliest
opportunity, either via e-mail at suttons@tuckerssolicitors.com or
call Stuart
Sutton on 0808 164 6795 or 0808 169 5980.